Disability discrimination.

[Bingbongsong]

I have taken on an employee on a part time contract, who who has worked 16 hrs over three days so far in her role. She has now gone off sick.

The employee disclosed previous RSI in her wrists elbows on the medical form she completed after she was offered the job. The role was explained in detail, and that it was a physical role, but where tasks varied daily. She was happy with this, and made no request for amendments or adjustments.

The role is physical, and we have no office based roles available at the moment. In short, I would like to dismiss this employee.


My question is, what are the parameters for a Disability Discrimination claim? What do I need from an OH report? Do I need an OH report?

Many thanks.

[echat11]

Here's some info - https://www.equalityhumanrights.com/...m%20disability.

But I'm sure ULA will provide further advice / insight.

[ULA]

Section 6(1) of the Equality Act says that a person has a disability if they (a) have a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Long term is normally taken to be 12 months and over.

When the employee disclosed previous RSI did they say how long they had suffered this for?
How long have they been employed by you?

Depending on the answer to the first question then there may be the possibilty of this being considered a disability under the section 6(1) definition, which means that even if they have less than 2 years service there is the potential for a disability discrimination claim if you dismiss unfairly due to the disability.

I would always take the cautious approach and it may be a good idea to get an OH report. You would need to get the consent of the employee, for which there is a process to go through. Plus you would need to put together a well thought through set of questions to provide to whoever is doing the OH assessment in order to get a meaningful report that can help you make decisions going foward.

[Bingbongsong]

Thank you for that.

I don’t k ow how long the RSI has been an issue, and realise that at the time the medical questionnaire was completed, we should have those questions.

The employee came on our books around 5/6 weeks ago, and went off sick after 3 days.

She has agreed to an OH report, so I will get that booked.

Many thanks.

[echat11]

In your initial post you mentioned 'and we have no office based roles available at the moment.', I don't know the likelihood of a position opening up in the future, but you could state, if you want that is, 'you will give consideration at the time if a position becomes available.

[ULA]

Glad she has agreed to the OH report. Do not forget you need to get all the relevant permission agreed to in writing and she has the right to see the report prior to it being sent to you.

Do you need any support with what information you need to obtain from the report?

Sorry if you already know how to manage this process.

[Law Student 4]

Celestine ULA An OH report is important to receive specialist advice on an employees disability. However, you as the employer are under a duty not to discriminate your employees based upon their disability, and should make your own assessment as to whether an employee is disabled or not despite a OH report. The employer is expected to make reasonable adjustments for the employee if they are aware of the disability.

[ULA]

Law Student 4 you are correct that it is important to receive specialist advice in regard to an employee's health situation and not to discriminate as a consequence of that disability. The purpose of an OH report is to assist an employer by providing objective information regarding the employee's condition, prognosis and possible reasonable adjustments that can be made to assist continued working in the company. An OH report can in fact, dependent upon the condition, inform the employer that it does come under the Equality Act section 6 (1) definition of a disability.

An employer must consider making reasonable adjustments and if they reasonable then make the changes. An employer does not have to make adjustments that are unreasonable, but should still try to find other ways to support the employee.

[echat11]

@Law Student 4 Occupational Health can also arrange for a medical / assessment by HCP to be carried out with the consent of the employee. They can also recommend other strategies to help the employee get back to work in stages.

[Bingbongsong]

Glad she has agreed to the OH report. Do not forget you need to get all the relevant permission agreed to in writing and she has the right to see the report prior to it being sent to you.

Do you need any support with what information you need to obtain from the report?

Sorry if you already know how to manage this process.

Thank you ULA. I have got consent to send relevant medical and HR info, also consent for us to receive a copy of the report. The OH provider are quite good and send a list of questions which cover most things, such as adjustments which may be needed, time frames etc. I've also asked if they feel the condition falls under the definition of a disability under the EA. Happy for any other suggestions.

Many thanks.

[Bingbongsong]

Celestine ULA An OH report is important to receive specialist advice on an employees disability. However, you as the employer are under a duty not to discriminate your employees based upon their disability, and should make your own assessment as to whether an employee is disabled or not despite a OH report. The employer is expected to make reasonable adjustments for the employee if they are aware of the disability.

This employee has only worked 16hrs in the job before going off sick. As an employer I am not qualified to know what adjustments would be required for this person to work safely. If I were to make a decision to bring this employee back with my own amendments in place, and they were to suffer injury or further exacerbation of their condition, our business would be completely exposed to a personal injury claim. I have a duty to seek expert advice at this stage.

While employers are expected to make reasonable adjustments, an adjustment is not reasonable if it will impose a disproportionate burden on the employer. Once we receive advice from the OH as to what those amendments should be, we can go through the process of assessing if these adjustments are reasonable.

Many thanks.

[ULA]

Just some additional points for you.

Make sure the OH provider has details of the job requirements so that they can make their assessment of the employee’s medical condition against these. Plus some questions to cover as part of the assessment if you have not already thought of these:

1. Is the employee medically fit to work in the role as detailed?
2. When is the employee is likely to be able to return to work?
3. Is the medical condition likely to cause continuing absence? If so, what is the duration/incidence likely to be?
4. Is the employee receiving appropriate medical care and support?
5. Is the employee’s illness caused or likely to be exacerbated by their duties as outlined?
6. If the employee is taking medication, is it likely to impair their ability to do their job safely and effectively?

Hope this helps.

[Bingbongsong]

Thank you ULA, that’s very helpful.